On Friday (24 May) the Court of Appeal delivered its decision in the cases of Capita v Ali and Hextall v Chief Constable of Leicestershire.  In both cases, male employees claimed sex discrimination on the basis that their employer’s shared parental leave (SPL) policies provided the statutory rate of SPL pay to employees taking SPL, while their maternity leave policies provided for enhanced maternity pay.  The Court of Appeal has ruled that this is neither direct nor indirect discrimination.

For direct discrimination, the correct comparison is between a man and a woman taking SPL – not between a man taking SPL and a woman taking maternity leave.  As such, there is no discrimination because they would both receive the same rate of SPL pay.  This is generally viewed as a correct analysis and is not surprising. What is more interesting perhaps is the ruling on indirect discrimination.  There, the claimants’ argument was that paying the statutory rate of pay for all employees who take SPL causes a particular disadvantage to men when compared to women.  The Court of Appeal rejected this argument too.  They said that the pool for comparison purposes is a pool of employees whose circumstances are the same as each other (or not materially different).  So women taking maternity leave had to be excluded because they are in a materially different position from men and women taking SPL.  That left a pool comprised of men and women taking SPL (as opposed to maternity leave).   Based on that pool, where the men and women would be paid the same flat rate of SPL pay, there was no particular disadvantage to the men.  In any event, the Court also found that, if there were any disadvantage to men, the employers would have been able to justify it as a proportionate means of achieving a legitimate aim, namely the special treatment of mothers in connection with pregnancy or childbirth.

Both Claimants have asked for permission to appeal to the Supreme Court but, for now at least, the legal position is clear.  Employers will not be liable to a sex discrimination claim if they operate an enhanced maternity pay policy and a statutory rate SPL pay policy.

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